Appeal No. 1997-3221
Application No. 08/249,241
Claim 31:
The examiner states (Answer, page 8) “[b]ecause GluR2 was known to be
structurally and functionally analogous to the GABA receptor subunit of Cutting
et al., an artisan would have found the incorporation of a cDNA encoding that
receptor subunit into an expression system like the one described by Cutting
et al., and the subsequent preparation of membrane homogenates from the
resulting cells to determine the ligand binding characteristics of a receptor
composed of human GluR2 in the absence of other human glutamate receptors to
have been prima facie obvious in view of this combination of references at the time
the instant invention was made.”
This rejection based on the combination of Heinemann, Puckett and Sun
further in view of Cutting hinges on the fact that it would have been obvious to obtain
GluR2B, comprising the amino acid sequence of amino acids 1-863 of SEQ ID
NO:2, as recited in the claims. In our opinion, supra, the examiner failed to meet his
burden of establishing a prima facie of obviousness, based on the combination of
Heinemann, Puckett and Sun. Cutting does not make up for the deficiencies noted
above.
Having determined that the examiner has not established a prima facie case
of obviousness, we find it unnecessary to discuss the Zimmerman Declaration
executed July 21, 1997, and the Declarations filed under 37 CFR § 1.131 of
Kamboj (executed August 7, 1997), Nutt (executed June 26, 1997) and Elliott
(executed June 26, 1997) relied on by appellants to rebut any such prima facie
case.
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